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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> ITC (Free movement of persons) [2007] EUECJ C-208/05 (11 January 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C20805.html Cite as: [2007] EUECJ C-208/5, [2007] EUECJ C-208/05, [2007] ECR I-181 |
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(Freedom of movement for workers Freedom to provide services National legislation Payment by the Member State of the fee due to a private-sector recruitment agency in respect of recruitment Employment subject to compulsory social security contributions in that Member State Restriction Justification Proportionality)
In Case C-208/05,
REFERENCE for a preliminary ruling under Article 234 EC by the Sozialgericht Berlin (Germany), made by decision of 11 April 2005, received at the Court on 12 May 2005, in the proceedings
ITC Innovative Technology Center GmbH
Bundesagentur für Arbeit,
composed of A. Rosas, President of the Chamber, A. Borg Barthet, J. Malenovský, U. Lõhmus and A. à Caoimh (Rapporteur), Judges,
Advocate General: P. Léger,
Registrar: L. Hewlett, Principal Administrator,
having regard to the written procedure and further to the hearing on 4 May 2006,
after considering the observations submitted on behalf of:
ITC Innovative Technology Center GmbH, by L.A. Wenderoth, Rechtsanwalt,
the German Government, by M. Lumma and C. Schulze'Bahr, acting as Agents,
the Commission of the European Communities, by V. Kreuschitz and I. Kaufmann'Bühler, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 5 October 2006,
gives the following
Legal framework
Community legislation
'Any national of a Member State, shall, irrespective of his place of residence, have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State.'
'Any national of a Member State and any employer pursuing an activity in the territory of a Member State may exchange their applications for and offers of employment, and may conclude and perform contracts of employment in accordance with the provisions in force laid down by law, regulation or administrative action, without any discrimination resulting therefrom.'
'1. Under this Regulation, provisions laid down by law, regulation or administrative action or administrative practices of a Member State shall not apply:
where they limit application for and offers of employment, or the right of foreign nationals to take up and pursue employment or subject these to conditions not applicable in respect of their own nationals; or
where, though applicable irrespective of nationality, their exclusive or principal aim or effect is to keep nationals of other Member States away from the employment offered.
...'
'1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment.
2. He shall enjoy the same social and tax advantages as national workers.'
National legislation
'(1) Employees who are entitled to claim unemployment benefit or unemployment assistance and who have not been found a job after three months of unemployment or who are engaged in employment which is promoted as part of a job creation scheme or structural measure of adjustment under the Sixth Section of the Sixth Chapter shall be entitled to a recruitment voucher. By issuing the recruitment voucher, the Bundesagentur undertakes to pay, in accordance with the provisions set out below, the fee due to an agent instructed by the employee, which has placed the employee in employment subject to compulsory social security contributions for a minimum of 15 hours' work a week. Recruitment vouchers shall be valid for successive periods of three months.
...'
'(1) ... The provisions of this Book, with the exception of the First and Second Titles of the Fourth Section and the Fifth Section, shall also apply to job promotion.
...'
'The provisions on the insurance obligation and insurance entitlement shall apply:
(1) to the extent that they require employment or a self-employed activity, to all persons who are employed or actively self-employed within the area of application of this statutory code;
(2) ...'
'(1) The provisions of this statutory code shall apply to all persons who have their domicile or habitual place of residence within its area of application.
(2) Provisions of supranational and international law shall not be affected.
(3) ...'
The main proceedings and the questions referred for a preliminary ruling
'1. To what extent are rules of Community law protecting freedom of movement for persons, particularly Articles 18 EC and 39 EC and Articles 3 and 7 of Regulation (EEC) No 1612/68, infringed by an interpretation of the second sentence of Paragraph 421(g)(1) of [SGB III] to the effect that employment subject to compulsory social security contributions means only employment that comes within the scope of application of the [SGB]?
2. (a) To what extent is it possible and necessary to interpret that provision in conformity with European law so as to avoid the type of infringement described in Question 1?
(b) If an interpretation in conformity with Community law should not be possible or necessary, to what extent does the second sentence of Paragraph 421(g)(1) of SGB III infringe the rules of Community law protecting freedom of movement for workers?
3. To what extent are rules of Community law protecting freedom to provide services and competition, particularly Articles 49 EC, 50 EC and 87 EC, in conjunction with Articles 81 EC, 85 EC and 86 EC, or other rules of Community law, infringed by an interpretation of the second sentence of Paragraph 421(g)(1) of SGB III to the effect that employment subject to compulsory social security contributions means only employment that comes within the scope of application of the [SGB]?
4. (a) To what extent is it possible and necessary to interpret that provision in conformity with European law so as to avoid the type of infringement described in Question 3?
(b) If an interpretation in conformity with Community law should not be possible or necessary, to what extent does the second sentence of Paragraph 421(g)(1) of SGB III infringe Community law inasmuch as the freedom of movement for workers is not protected?'
The questions referred for a preliminary ruling
Question 1 and Question 2(b), on freedom of movement for workers
Question 3
The Treaty provisions relating to State aid
The freedom to provide services
Question 1, on citizenship of the European Union
Question 2(a) and Question 4(a)
Costs
On those grounds, the Court (Third Chamber) hereby rules:
1. Articles 39 EC, 49 EC and 50 EC prohibit national legislation, such as the second sentence of Paragraph 421(g)(1) of Book III of the German Social Security Code, which provides that payment by a Member State to a private-sector recruitment agency of the fee due to that agency by a person seeking employment in respect of that person's recruitment is subject to the condition that the job found by that agency be subject to compulsory social security contributions in that State.
2. It is for the national court to the full extent of its discretion under national law, to interpret and apply domestic law in accordance with the requirements of Community law and, to the extent that such an interpretation is not possible in relation to the EC Treaty provisions conferring rights on individuals which are enforceable by them and which the national courts must protect, to disapply any provision of domestic law which is contrary to those provisions.
[Signatures]
* Language of the case: German.